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Federal court says EPA needs to reconsider decision on Wyodak

The EPA must reconsider its disapproval of Wyoming's plan regarding emissions from the Wyodak power plant, and this time it must give Wyoming's plan the consideration it deserves under the law, the U.S. Court of Appeals 10th Circuit ruled Aug. 15.

(Jay Leigh Gayl Kiewel)

GILLETTE, Wyo. — The EPA must reconsider its disapproval of Wyoming’s plan regarding emissions from the Wyodak power plant, and this time it must give Wyoming’s plan the consideration it deserves under the law, the U.S. Court of Appeals 10th Circuit ruled Aug. 15.

If the EPA again finds that Wyoming hasn’t chosen the “best available retrofit technology,” it needs to explain why the state’s cost and visibility analyses aren’t a reasonable way to satisfy the Clean Air Act’s requirements for the federal and state governments to limit haze around national parks and wilderness areas, the court said.

Wyoming adopted a state plan in 2011 to meet the goals of EPA’s Regional Haze program, established under the Clean Air Act. Among other components, the plan includes limiting emissions from the Wyodak power plant near Gillette and the Naughton 1 and 2 plants, which are near Kemmerer.

In 2014, the EPA decided to replace Wyoming’s plan for Wyodak with what the federal agency determined was the proper technology, the court said. Wyoming and PacifiCorp argued that the EPA failed to grant Wyoming the deference required by federal law when it didn’t approve the Wyodak portion. Several conservation groups, on the other hand, argued that the EPA should disapprove of the Naughton 1 and 2 portion of Wyoming’s plan. They said the EPA failed to require the best available technology to reduce regional haze in a timely manner.

The factors that determine what is the “best available retrofit technology” are the costs of compliance, the energy and non-air-quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology, the court said, meaning BART might not be the most stringent or effective technology.

The EPA’s BART guidelines are only binding for powerplants that have a generating capacity of more than 750 megawatts, the court said. The guidelines aren’t binding for Wyodak, which has an output of 335 megawatts.

“The EPA erred in evaluating the Wyodak portion of the SIP because it treated nonbinding agency guidelines as mandatory in violation of the Clean Air Act. … Certainly, the guidelines are helpful while not binding, and ordinarily no problem presents itself when the EPA references them in reviewing Wyoming’s SIP. The problem arises, however, when the EPA’s rejection of the state’s BART determination — supposedly for unreasonable cost and visibility analyses — is grounded in a strict application of the nonbinding guidelines,” the court said. “The EPA’s final rule confirms that the agency treated the guidelines as binding for Wyodak and disregarded the state’s broad discretion under the Clean Air Act.”

The state’s plan achieved the statutory goals at a lower cost than the federal plan, reducing what ratepayers needed to spend, Gov. Mark Gordon’s office said in a news release today.

“The EPA cannot just insert its Federal Implementation Plan over the state plan, nor did it give the state’s plan its due deference,” the release said.

The court also upheld the EPA’s decision to approve the State Implementation Plan for Naughton Units 1 and 2, which are near Kemmerer.

“It is gratifying that the Court recognized this example of Federal overreach into what is the rightful domain of the State of Wyoming,” Gordon said. “Just because the Federal government may think it knows best, that doesn’t mean it can trample on the state’s rights. I hope the Federal government takes a serious look at what this decision means in terms of state primacy.”